Taylor v. Ryan

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION: the Magistrate Judge's [Report and Recommendation 13 is accepted and adopted by the Court; the Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice; a Certificate of Appealabil ity and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because Petitioner has not satisfied his burden regarding a freestanding actual innocence claim; the Clerk shall terminate this action. Signed by Judge Steven P Logan on 2/1/17. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ulyesses Moran Taylor,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-14-02721-PHX-SPL (JZB)
ORDER

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Petitioner Ulyesses Moran Taylor has filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable John Z. Boyle, United States

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Magistrate Judge, has issued a Report and Recommendation (“R&R”) (Doc. 13),

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recommending that the petition be denied on the basis that Petitioner’s claims are either

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procedurally barred from review or without merit. Petitioner has objected to the R&R.

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(Doc. 14.) For the following reasons, the Court accepts and adopts the R&R, and denies

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the petition.

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I.

Background

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In 2010, Petitioner was charged in the Maricopa County Superior Court, Case No.

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CR 2010-127956, with first degree burglary and aggravated assault. (Doc. 10-1, Exh. A.)

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Petitioner pled guilty to the offense burglary and was sentenced to a 7-year term of

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imprisonment. (Doc. 10-1, Exh. F.)

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On December 18, 2014, Petitioner timely filed the instant Petition for Writ of

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Habeas Corpus raising two claims for relief. (Doc. 1.) In Ground One, Petitioner claims

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ineffective assistance of counsel in violation of the Sixth Amendment based on trial

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counsel’s failure to adequately advise him during the plea process. In Ground Two,

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Petitioner claims actual innocence of the crime of first-degree burglary. Respondents

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filed a limited answer in which they argue that Petitioner’s claims should be dismissed as

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procedurally barred or not cognizable on federal habeas review. (Doc. 10.)

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II.

Standard of Review

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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III.

Discussion

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First, Petitioner objects to the Magistrate Judge’s finding that Petitioner’s

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ineffective assistance of counsel claim is insubstantial and does not establish cause to

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excuse Petitioner’s procedural default under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct.

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1309 (2012).1 Petitioner maintains that the fact that he lived at the residence with the

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To determine whether a claim is substantial requires the Court to examine the
claim has some merit under Strickland v. Washington, 466 U.S. 668 (1984), which is
“applicable to ineffective-assistance claims arising out of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 57 (1985). See Martinez, 132 S.Ct. at 1318; Cook v. Ryan, 688
F.3d 598, 607 (9th Cir. 2012); Hedlund v. Ryan, 815 F.3d 1233, 1250 (9th Cir. 2016).
Under Strickland, as applied in the context of the circumstances here, Petitioner must
show: (1) deficient performance, in that counsel’s representation fell below an objective
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victim was “an essential defense” to the crime of burglary,2 and “had he received the

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necessary and accurate legal information with respect to the criminal elements in the

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statute compared to the State’s evidence he would have been exonerated at trial and

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refused to plead guilty.” (Doc. 14 at 1.)

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Accepting that Petitioner “resided” in the apartment with the victim, Petitioner did

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not have “an absolute and unconditional right to enter and remain on the property where

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he committed the crime.” State v. Altamirano, 803 P.2d 425, 430 (Ariz. Ct. App. 1990).

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The victim, not Petitioner, held the lease on the apartment, and Petitioner had no apparent

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legal right to the property. (Doc. 10-2 at 10-11, 20, Exh. J at 9, 19.) Any right to reside at

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the apartment conferred by the victim did not give Petitioner an unconditional right to

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enter the residence with the intent to assault her or her guests. See State v. Van Dyke, 621

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P.2d 22, 23-24 (Ariz. 1980) (even if entry legitimate, crime of burglary complete upon

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entry with intent to commit felony). Further, even if assuming Petitioner’s initial entry

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was lawful, his continued presence became unauthorized when he remained on the

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premises with an intent to commit a felony. See Altamirano, 166 Ariz. at 435, 803 P.2d at

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428 (“It is clear that although a person enters another’s premises lawfully and with

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consent, his presence can become unauthorized, unlicensed, or unprivileged if he remains

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there with the intent to commit a felony.”). See also State v. Taylor, No. 2 CA-CR 2013-

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0468-PR, 2014 WL 708472, at *3 (Ariz. Ct. App. Feb. 21, 2014), review denied (Nov. 6,

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2014) (“at the time Taylor entered the plea, the record did not show Taylor had ‘an

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standard of reasonableness; and (2) prejudice, in that there is a reasonable probability
that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would
have insisted on going to trial. Strickland, 466 U.S. at 687-88; Hill, 474 U.S. at 59. The
prejudice assessment generally “will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial.” Id. Thus, “where the alleged
error of counsel is a failure to advise the defendant of a potential affirmative defense to
the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on
whether the affirmative defense likely would have succeeded at trial.” Id.
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To convict Petitioner of first-degree burglary, the state was required to prove that
he had “enter[ed] or remain[ed] unlawfully in ... a residential structure with the intent to
commit any theft or any felony therein” and knowingly possessed a dangerous instrument
or deadly weapon “in the course of committing any theft or any felony.” Ariz. Rev. Stat.
§§ 13–1507(A), 13–1508(A).
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absolute and unconditional right’ to enter the victim’s apartment” and “any permission

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Taylor may have had to enter the residence at some time would not extend to stabbing

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[the victim].”).

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Therefore assuming, arguendo, that counsel performed deficiently by failing to

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advise Petitioner regarding the elements of his burglary offense such that his residence

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defense did not come to light, he has not demonstrated prejudice because he has not

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established a reasonable probability that the defense would have succeeded. As the

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alleged defense was unlikely to succeed, he would have faced a greater sentence had he

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gone to trial, and there is no evidence that Petitioner would have decided to proceed to

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trial on the basis of an unmeritorious defense, he cannot establish prejudice arising from

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counsel’s failure to advise him. Rather, the record suggests only that it is likely that a jury

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would have convicted him if he had not pleaded guilty. The evidence supporting the

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burglary charge does not rest on the victim’s testimony alone. It is undisputed that

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Petitioner entered the victim’s residence, and in order to do so, Petitioner kicked the door

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down. Police records reflect that Petitioner admitted that when he was inside the

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apartment, he had “raised the knife and pushed it into [the victim] one time.” (Doc. 10-1

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at 97, Exh. I.) The victim’s guest was present in the apartment at the time of the crime

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and told police that he had heard Petitioner yell “im gonna kill you” and “im gonna stab

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you” [sic]. (Doc. 10-1 at 98, Exh. I.) Despite the victim’s recantation, her original

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account of the events as reported would be probative at trial; the inherent nature of the

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case, as observed by the state court, was one of domestic violence. The version of events

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provided by the victim in her recantation is not dispositive, but a matter of credibility for

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the jury to decide. See Jones v. Taylor, 763 F.3d 1242 (9th Cir. 2014) (finding recantation

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testimony insufficient under the facts of the case because they could say not that every

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juror would credit the recantation testimony).

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Therefore, Petitioner fails to demonstrate that his ineffective assistance of counsel

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claim is substantial under Martinez. See United States v. Keller, 902 F.2d 1391, 1395 (9th

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Cir. 1990) (no Strickland prejudice from counsel’s alleged failure to pursue defense
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where defense was unlikely to have succeeded at trial); Smith v. Mahoney, 611 F.3d 978,

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990 (9th Cir. 2010) (no Strickland prejudice where petitioner had “little to no chance of

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prevailing on an affirmative defense”); Weaver v. Palmateer, 455 F.3d 958, 970 (9th Cir.

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2006) (no Strickland prejudice where petitioner’s proposed defense “would have been

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unlikely to succeed” and therefore “unlikely to supplant the plea bargain”); Lambert v.

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Blodgett, 393 F.3d 943, 984 (9th Cir. 2004) (no Strickland prejudice from counsel’s

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alleged failure to uncover evidence supporting defense prior to guilty plea where there

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was “overwhelming evidence of guilt” and “little chance” that defense would have

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succeeded at trial); Sophanthavong v. Palmateer, 378 F.3d 859, 870-71 (9th Cir. 2004)

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(no Strickland prejudice where petitioner’s assertion that he would have rejected plea

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offer and gone to trial had he been properly advised was not credible in light of

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substantial evidence of his guilt and much higher potential sentence at trial).

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For the same reasons, Petitioner’s objection to the R&R as to the applicability of

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the “fundamental miscarriage of justice” exception equally fails. See also Schlup v. Delo,

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513 U.S. 298, 329 (1995) (petitioner must make a credible showing of “actual innocence”

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by “persuad[ing] the district court that, in light of the new evidence, no juror, acting

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reasonably, would have voted to find him guilty beyond a reasonable doubt.”). Petitioner

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has not shown that it is more likely than not that no reasonable juror would have found

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him guilty beyond a reasonable doubt of first degree burglary, or that the victim’s

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recantation of events undermines the confidence in the outcome of the proceedings. See

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Schlup, 513 U.S. at 314–15.

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Therefore, having reviewed the objected to recommendations de novo, the Court

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finds that the Magistrate Judge correctly concluded that Petitioner’s ineffective assistance

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of counsel claim in Ground One is unexhausted and procedurally defaulted, that he has

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not presented cause and prejudice to excuse the default, or demonstrated that an

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exception to default applies. Further, as addressed in the R&R, because Petitioner failed

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to meet the lower standard of actual innocence under the Schlup, he does not meet his

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burden as to his freestanding actual innocence in Ground Two to the extent the claim is
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cognizable.

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Petitioner lastly objects to the failure to be provided with an evidentiary hearing.

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This objection is also rejected. The record is sufficiently developed and Petitioner has not

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made a good-faith allegation that would, if true, establish cause or prejudice or an

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exception to the procedural bar. Therefore, the Court does not find that an evidentiary

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hearing is warranted to resolve this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041

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(9th Cir. 2011).

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III.

Conclusion

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Having reviewed the record as a whole, Petitioner’s claims are either procedurally

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barred from review or without merit. The R&R will therefore be adopted in full.

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Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 13) is

accepted and adopted by the Court;
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That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

(Doc. 1) is denied and dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable, and

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because Petitioner has not satisfied his burden regarding a freestanding actual innocence

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claim.; and

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4.

That the Clerk of Court shall terminate this action.

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Dated this 1st day of February, 2017.

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Honorable Steven P. Logan
United States District Judge

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